Defendant
Oracle develops, manufacturers, and licenses computer
software, particularly Enterprise Software
Programs.[1] Rather than sell its software to consumers
outright, Oracle licenses its software to customers through
software licensing agreements which govern the customers'
rights to use the software. Along with its software licensing
business, Oracle also provides software maintenance and
support services to its software licensees through separate
software support service contracts. Oracle holds a number of
federal copyrights for its various software applications,
including the particular Enterprise Software Programs at
issue in this action.

Plaintiff
Rimini Street provides third-party maintenance and support
services to consumers who license software applications from
other software companies and competes directly with Oracle to
provide these after-license services. Rimini Street does not
develop or manufacture its own competing software
applications and holds no federal copyrights. Rather, Rimini
Street contracts with software licensees to provide software
maintenance and support services for certain software
applications including the particular Oracle copyrighted
Enterprise Software Programs at issue in this action.
Counter-defendant Seth Ravin (“Ravin”) is the
owner and CEO of Rimini Street.

This is
the second action between the parties. In the first action,
Oracle USA., Inc. v. Rimini Street, Inc., case no.
2:10-cv-0106-LRH-(VCF) (“Oracle I”),
Oracle brought several claims against Rimini Street and Ravin
for copyright infringement and other business-related torts
based on (1) the process Rimini Street used to provide
software maintenance and support services to customers who
had licensed Oracle software, and (2) the manner in which
Rimini Street accessed and preserved copies of Oracle's
copyrighted software source code. See Oracle I, case
no. 2:10-cv-0106-LRH-(VCF), ECF No. 1. While litigation in
Oracle I was proceeding, Rimini Street allegedly
changed the manner by which it accessed and preserved its
customer's licensed software and the process by which it
provided software maintenance and support services to its
clients in response to the court's summary judgment
orders (Oracle I, case no. 2:10-cv-0106-LRH-VCF, ECF
Nos. 474, 476). Subsequently, on October 15, 2014, Rimini
Street initiated the present action against Oracle seeking a
declaration from the court that its new software maintenance
and support processes do not infringe Oracle's software
copyrights. See ECF No. 1.

After
Rimini Street changed its maintenance and support model for
servicing Oracle's copyrighted software, Oracle allegedly
made several false statements about Rimini Street's
business services to Oracle licensees who had or were
thinking about contracts with Rimini Street for after-license
support services. In particular, Oracle allegedly told its
licensees that Rimini Street was still engaging in copyright
infringement of Oracle's software copyrights and that
Rimini Street's new software support model for Oracle
copyrighted software does not comply with the court's
orders in Oracle I. Further, Oracle allegedly
misrepresented the type and quality of software maintenance
and support services that Rimini Street is capable of
providing. Rimini then twice amended its complaint to add new
allegations and claims against Oracle based on these alleged
misrepresentations. See ECF Nos. 63, 367.

On
January 17, 2017, Oracle sent Rimini Street a letter
providing 60 days' notice of Oracle's intent to
revoke Rimini Street's access to Oracle's various
support websites.[2] After the sixty-day period ran, Oracle
allegedly revoked and terminated all of Rimini Street's
access to Oracle's support websites, thereby allegedly
preventing Rimini Street from carrying out certain support
services for Rimini Street's clients. In response, Rimini
Street filed a motion for leave to file a third amended
complaint to add new allegations and claims arising from
Oracle's revocation of access to the support websites
(ECF No. 465) which was granted by the court (ECF No. 486).
Subsequently, on May 2, 2017, Rimini Street filed its third
and final complaint against Oracle alleging eight (8) causes
of action: (1) declaratory judgment that Rimini Street's
new software maintenance and support processes do not
infringe Oracle's software copyrights; (2) declaratory
judgment that Rimini Street has not engaged in any violation
of the Federal, California, and Nevada anti-hacking statutes;
(3) declaratory judgment that Oracle has engaged in copyright
misuse; (4) intentional interference with contractual
relations; (5) intentional interference with prospective
economic advantage; (6) violation of Nevada's Deceptive
Trade Practices Act, Nevada Revised Statutes
(“NRS”) § 598 et seq.; (7)
violation of the Lanham Act; and (8) unfair competition in
violation of California Business & Professions Code
§ 17200 et seq. ECF No. 487. Thereafter, Oracle
filed the present motion to dismiss certain claims from
Rimini Street's third amended complaint. ECF No. 505.

II.
Legal Standard

A.
Rule 12(b)(6)

Defendant
Oracle seeks dismissal pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure for failure to state a
legally cognizable cause of action. See Fed. R. Civ.
P. 12(b)(6) (stating that a party may file a motion to
dismiss for “failure to state a claim upon which relief
can be granted[.]”). To survive a motion to dismiss for
failure to state a claim, a complaint must satisfy the notice
pleading standard of Rule 8(a)(2) of the Federal Rules of
Civil Procedure. See Mendiondo v. Centinela Hosp. Med.
Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). Under Rule
8(a)(2), a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8(a)(2) does not
require detailed factual allegations; however, a pleading
that offers only “‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action'” is insufficient and fails to meet this
broad pleading standard. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).

To
sufficiently allege a claim under Rule 8(a)(2), viewed within
the context of a Rule 12(b)(6) motion to dismiss, a complaint
must “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Id. (quoting Twombly,
550 U.S. at 570). A claim has facial plausibility when the
pleaded factual content allows the court to draw the
reasonable inference, based on the court's judicial
experience and common sense, that the defendant is liable for
the alleged misconduct. See Id. at 678-679 (stating
that “[t]he plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully. Where a
complaint pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between
possibility and plausibility of entitlement to
relief.”) (internal quotation marks and citations
omitted). Further, in reviewing a motion to dismiss, the
court accepts the factual allegations in the complaint as
true. Id. However, bare assertions in a complaint
amounting “to nothing more than a formulaic recitation
of the elements of a . . . claim . . . are not entitled to an
assumption of truth.” Moss v. U.S. Secret
Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting
Iqbal, 556 U.S. at 698) (internal quotation marks
omitted). The court discounts these allegations because
“they do nothing more than state a legal
conclusion-even if that conclusion is cast in the form of a
factual allegation.” Id. “In sum, for a
complaint to survive a motion to dismiss, the non-conclusory
‘factual content, ' and reasonable inferences from
that content, must be plausibly suggestive of a claim
entitling the plaintiff to relief.” Id.

B.
Rule 9(b)

Pursuant
to the Federal Rules of Civil Procedure, a complaint triggers
the heightened pleading standard of Rule 9(b), rather than
the broad notice pleading standard of Rule 8(a)(2), when the
complaint alleges facts that “sound in fraud.”
Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04
(9th Cir. 2003). To determine whether a complaint sounds in
fraud, a court looks to the substance of the party's
allegations. Id. There are no “magic
words” or formal requirements for a complaint to sound
in fraud (Id. at 1108), and fraud need not be an
element of a claim for Rule 9(b)'s heightened pleading
standard to apply to the allegations in a complaint (See
Grand Canal Shops II, LLC v. Iavarone, 2012 WL 6041643,
at *2 (D. Nev. Dec. 4, 2012)). Generally, a complaint that
alleges a party made “misrepresentations” in
order to induce a breach of contract or otherwise interfere
with current or prospective contractual relations is
sufficient to trigger Rule 9(b)'s heightened pleading
standard. See e.g., BioResource, Inc. v. U.S. PharmaCo
Distribution, Ltd., No. C10-1053, 2010 WL 3853025, at *3
(N.D. Cal. Sept. 29, 2010); Hologram USA, Inc. v. Pulse
Evolution Corp., 2015 WL 316900, at *4 (D. Nev. Jan. 23,
2015). Similarly, a complaint that alleges a party violated
the Lanham Act by making misrepresentations in its
advertising and marketing materials likewise triggers Rule
9(b)'s pleading standard. LT Int'l Ltd. v.
Shuffle Master, Inc., 8 F.Supp.3d 1238, 1244-45 (D. Nev.
2014).

To
sufficiently allege a claim under Rule 9(b) of the Federal
Rules of Civil Procedure, a complaint must make specific
allegations of the alleged fraud sufficient “to give
defendants notice of the particular misconduct which is
alleged to constitute the fraud charged so that they can
defend against the charge and not just deny that they have
done anything wrong.” Semegen v. Weidner, 780
F.2d 727, 731 (9th Cir. 1985). To provide a defendant with
appropriate notice, a complaint must allege the “time,
place, and specific content of the false representations as
well as the identities of the parties to the
misrepresentations.” Swartz v. KPMG LLP, 476
F.3d 756, 764 (9th Cir. 2007); see also, Saldate
v. Wilshire Credit Corp., 268 F.R.D. 87, 102 (E.D. Cal.
2010) (quoting Tarmann v. State Farm Mut. Auto. Ins.
Co., 2 Cal.App.4th 153, 157 (Cal. 1991)) (“[I]n a
fraud action against a corporation, a plaintiff must
‘allege the names of the persons who made the allegedly
fraudulent representations, their authority to speak, to whom
they spoke, what they said or wrote, and when it was said or
written.'”). However, there is a recognized
exception to Rule 9(b)'s heightened pleading standard
when “the facts constituting the circumstances of the
alleged fraud are peculiarly within the defendant's
knowledge or are readily obtainable by him.”
Nuebronner v. Milken, 6 F.3d 666, 672 (9th Cir.
1993). “In such situations, plaintiffs cannot be
expected to have personal knowledge of the relevant
facts” and the court may review the sufficiency of the
complaint under Rule 8(a)(2)'s pleading standard.
Id.

III.
Discussion

In its
motion, Oracle seeks to dismiss six (6) claims from Rimini
Street's third amended complaint (ECF No. 487): claim two
for a declaratory judgment that Rimini Street has not engaged
in any violation of the Federal, California, and Nevada
anti-hacking statutes; claim three for a declaratory judgment
that Oracle has engaged in copyright misuse; claim four for
intentional interference with contractual relations; claim
five for intentional interference with prospective economic
advantage; claim six for violation of Nevada's Deceptive
Trade Practices Act, NRS § 598 et seq.; claim
seven for violation of the Lanham Act; and claim eight for
unfair competition in violation of California Business &
Professions Code § 17200 et seq. See ECF No.
505. The court shall address each claim below.

A.
Declaratory Judgment re: Anti-Hacking Statutes

Rimini
Street's second cause of action is for a declaratory
judgment that it did not, has not, and would not violate
either the Federal Computer Fraud and Abuse Act
(“CFAA”), the California Computer Data Access and
Fraud Act (“CDAFA”), or the Nevada Computer
Crimes Law (“NCCL”) by continuing to access
Oracle's support websites after Oracle's purported
revocation of Rimini Street's authorization to access
those support websites.[3] ECF No. 487. Rimini Street's claim
for declaratory relief is based upon Oracle's January 17,
2017 cease-and-desist letter which informed Rimini Street
that its authorization to access Oracle's various support
websites would be revoked as of March 18, 2017. In its third
amended complaint, Rimini Street alleges that it acts as an
authorized agent for its clients who license Oracle's
copyrighted software and, as part of those software licenses,
are specifically authorized to access Oracle's support
websites. ECF No. 487, ¶ 117. Based on the alleged
express authorization to access Oracle's support websites
on the licensees' behalf, Rimini Street seeks a
declaration from the court that continued access of
Oracle's support websites after March 18, 2017, is not a
violation of the CFAA, CDAFA, and the NCCL.

In its
motion to dismiss, Oracle contends that Rimini Street's
declaratory relief claim fails to state a claim for relief as
a matter of law in light of recent Ninth Circuit precedent
established in Facebook, Inc. v. Power Ventures,
Inc., 844 F.3d 1058 (9th Cir. 2016). See ECF
No. 505. Specifically, Oracle argues that in light of
Facebook, Rimini Street's continued access of
Oracle's support websites after Oracle's explicit
revocation of authorization constitutes a violation of the
CFAA, CDAFA, and the NCCL regardless of any prior or
subsequent authorization from Oracle's software
licensees.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
court has reviewed the allegations in Rimini Street&#39;s
third amended complaint, along with the documents and
pleadings on file in this matter, and finds that the court
cannot, on the limited record and argument before the court,
conclude that Rimini Street&#39;s continued access of
Oracle&#39;s support websites after March 18, 2017, is or is
not a violation of the Federal, California, and Nevada
anti-hacking statutes. The court recognizes Oracle&#39;s
argument that the Ninth Circuit&#39;s recent decision in
Facebook confirms that continuing to access a
website after receiving an express revocation of
authorization to access that website by the website&#39;s
owner is an actionable violation of both the CAFA and the
CDAFA.[4]See Facebook, Inc., 944 F.3d
1058, 1067-1069 (reaffirming the rule that a defendant
violates the CFAA and CDAFA when the defendant accesses a
website after permission to access the website has been
specifically revoked by the owner of the website and the
defendant was aware of such express revocation). However,
although Facebook dealt, in a limited manner, with
subsequent third party authorization to access a website
after the website&#39;s owner revoked such authorization,
[5] the
parties have not addressed the issue of
Facebook&#39;s precedential effect in this action
where the third party authorization comes from a licensee
with a direct contractually vested property interest in
accessing the website which arises from the underlying
license. And here Rimini Street has specifically pled that
Oracle&#39;s software licenses specifically grant the
licensee &ldquo;the right to access, download, and use the
bug fixes, patches, and updates that Oracle makes
available&rdquo; on its support websites. ECF No. 487, &para;
62. Rimini Street has further alleged that the software
licenses specifically allow the licensee to appoint an agent
to access the support websites and execute downloads on the
licensees&#39; behalf. Id. ¶ 63-64. In this
vein, Rimini Street has alleged that its clients - the
licensees of Oracle's software - have granted Rimini
Street the authority to access ...

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